Vice Squad
Wednesday, June 30, 2004
Just a Few More Words About COPA

You can find some good commentary about yesterday's ruling at Balkinization and here and here at the Volokh Conspiracy. I'll mention that I, too, thought that Justice Breyer's claim that COPA targeted material that was either legally obscene or nearly obscene seriously downplayed the potential scope of COPA. And he and I have different imaginations, it seems, given that he thinks "one cannot easily imagine material that has serious literary, artistic, political, or scientific value for a significant group of adults, but lacks such value for any significant group of minors." (Minors here are people less than 17.) And I imagine that some courts will be happy to find lots of non-legally obscene material nevertheless lacking in serious value for minors. But I do share a concern that is noted in the Breyer dissent, namely, that the failure to uphold COPA will lead to more restriction on speech, not less, if current obscenity laws are enforced more strictly when a COPA-like mechanism for shielding kids from smut is not available.

Justice Breyer also notes in his dissent that the existence of a "compelling interest" by the government in protecting minors from commercial smut is not a subject of dispute: "No one denies that such an interest is 'compelling.'" Well, I might be willing to deny it, or at least to suggest that the claim could benefit from some discussion. (In the February, 2003 William and Mary Bill of Rights Journal, Ashutosh Bhagwat has an interesting article that distinguishes between a governmental interest in helping parents shield their kids from porn, and an independent direct governmental interest in keeping kids from porn.)

Finally, I haven't seen any commentary on Justice Stevens's concurring opinion (joined by Justice Ginsburg), so I will mention some of the points that it makes. Stevens backs up the Appeals Court reasoning from the first time that the Supremes took on this case, namely, that the "community standards" approach alone leads to unconstitutionality:
I continue to believe that the Government may not penalize speakers for making available to the general World Wide Web audience that which the least tolerant communities in America deem unfit for their children's consumption, cf. Reno v. American Civil Liberties Union, 521 U. S. 844, 878 (1997), and consider that principle a sufficient basis for deciding this case.
Professor Stevens also implicitly takes aim at the claim in Justice Breyer's dissent that COPA really isn't all that restrictive:
I wish to underscore just how restrictive COPA is. COPA is a content-based restraint on the dissemination of constitutionally protected speech. It enforces its prohibitions by way of the criminal law, threatening noncompliant Web speakers with a fine of as much as $50,000, and a term of imprisonment as long as six months, for each offense. 47 U. S. C. §231(a). Speakers who "intentionally" violate COPA are punishable by a fine of up to $50,000 for each day of the violation. Ibid. And because implementation of the various adult-verification mechanisms described in the statute provides only an affirmative defense, §231(c)(1), even full compliance with COPA cannot guarantee freedom from prosecution. Speakers who dutifully place their content behind age screens may nevertheless find themselves in court, forced to prove the lawfulness of their speech on pain of criminal conviction.

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